Lau v Minister for Immigration and Citizenship (No 2)

[2007] FCA 1088

FEDERAL COURT OF AUSTRALIA

Lau v Minister for Immigration and Citizenship (No 2) [2007] FCA 1088

MIGRATION – exercise of discretion under s 116(1) of the Migration Act 1958 (Cth) – whether Migration Review Tribunal obliged to comply with Migration Series Instruction 368

Migration Act 1958 (Cth)

Lau v Minister for Immigration and Citizenship [2007] FCA 691
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43
Cooper v Commissioner of Taxation (2004) 139 FCR 205
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

KAI FAN LAU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 327 OF 2007

MANSFIELD J
27 JULY 2007
ADELAIDE (BY TELEPHONE TO SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 327 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

KAI FAN LAU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	27 JULY 2007
WHERE MADE:	ADELAIDE(BY TELEPHONE TO SYDNEY)

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay to the first respondent his costs of the appeal and of the application for leave to appeal out of time.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 327 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

KAI FAN LAU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	27 JULY 2007
PLACE:	ADELAIDE (BY TELEPHONE TO SYDNEY)

REASONS FOR JUDGMENT

1. On 11 May 2007, I gave the appellant leave to appeal out of time from a decision of a Federal Magistrate given on 8 February 2007, limited to the manner of exercise of the discretion under s 116(1) of the Migration Act 1958 (Cth) (the Act) by the Migration Review Tribunal (the Tribunal): see Lau v Minister for Immigration and Citizenship [2007] FCA 691.

2. The appellant was granted a Student (Temporary) (Class TU) Sub Class 573 (Higher Education Sector) visa (the visa) on 15 July 2003.  The delegate of the first respondent cancelled the visa on 23 March 2005 for breach of Condition 8101 imposed upon the visa, namely that the appellant must not engage in work in Australia.  The appellant contravened that condition.  In the circumstances, the delegate had a discretion as to whether to cancel the visa, and exercised that discretion to do so.  The delegate’s decision was affirmed by the Tribunal.  An application to the Federal Magistrates Court to set aside the decision of the Tribunal for jurisdictional error was dismissed on 8 February 2007.

3. I will not repeat the detailed background to the present appeal or the reasons for decision of the Tribunal or of the Federal Magistrate. They set out in the reasons for decision referred to in [1]. I gave leave to the appellant to appeal out of time from the decision of the Federal Magistrate in the limited terms referred to because I considered that it was reasonably arguable by the appellant that the exercise of the discretion whether or not to cancel the visa involved jurisdictional error on the part of the Tribunal. In the other respects upon which the appellant proposed to appeal, I did not think he had any prospect of establishing jurisdictional error. The arguable grounds of jurisdictional error depended upon it being established that the Tribunal, in the exercise of its discretion, had not complied with Migration Series Instruction 368 (MSI 368), as in force at the relevant time. Clause 17.2.1 of MSI 368 identified the primary considerations relevant to the exercise of the discretion as being:

   ·the purpose of the visa holder’s travel to and stay in Australia;

   ·the extent of non-compliance with any conditions subject to which the visa was granted;

   ·the degree of hardship which may be caused to the visa holder and any family members;

   ·the circumstances in which the ground for cancellation arose;

   ·the person’s behaviour in relation to the Department, now and on previous occasions.

4. I considered that it was arguable that the Tribunal had failed to address the issues as to the extent of non-compliance with Condition 8101, and the circumstances in which the ground for cancellation arose, in accordance with MSI 368, and that accordingly the Tribunal had committed jurisdictional error.  Those matters emerged in the course of the hearing on the application for leave to appeal out of time, and were not addressed in detail in the decision of the Federal Magistrate.

5. In the light of those reasons for decision, the parties were prepared for the appeal itself to be determined upon written submissions.  I set a timetable for those written submissions.  The appellant has not provided further written submissions, but has relied upon the material he provided in support of his application for leave to appeal out of time.  The first respondent has filed further written submissions.  The appellant has not responded to them.

6. As a result of the further submissions, in my view two issues need to be addressed.

   (1)whether MSI 368 imposes conditions binding upon a decision-maker, so that the failure to comply with it gives rise to jurisdictional error on the part of the Tribunal either because there will then be shown to have been an error of law so the correct issue has not been addressed or addressed fully, or because the decision-maker has not taken into account considerations relevant to the making of the decision, as explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; and

   (2)if it does, whether the Tribunal’s reasons expose that in fact it did not comply with those conditions so as to have committed an error of law or to have failed to take into account relevant considerations in the making of its decision.

7. I briefly discussed the first issue in [37] of my earlier reasons.

8. MSI 368 as then in force does not on its face constitute directions given by the Minister under s 499 of the Act, so that s 499(2A) does not operate to oblige the Tribunal to have complied with it.  The first respondent contends, and I accept, that MSI 368 is merely a departmental document without statutory foundation.  I also accept the first respondent’s submission that MSI 368 is not a document issued by a delegate of the Minister under s 496 of the Act.  There is nothing on its face to indicate to the contrary.  Consequently, there was no statutory obligation upon the Tribunal to comply with the directions contained in MSI 368 when the decision to cancel the visa was made.  The decision of Gray J in Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71 concerning MSI 316 is therefore distinguishable: see in particular at [62]. In El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 Gray J decided that prescriptions under Policy Advice Manual 3 did not constitute a direction pursuant to s 499 of the Act, but merely contained non-binding guidelines to a decision-maker and the Tribunal, so that the prescriptions in the Policy Advice Manual 3 guidelines could not be relevant considerations which the decision-maker was bound to have taken into account: see at 55, [45]. His Honour described that document as containing “procedural and policy guidelines” as indicated by its own terms.

9. The terms of MSI 368 are somewhat different from those considered by Gray J in El Ess.  It is introduced as covering “grounds and procedures for cancellation”, including under s 116, and setting out “general principles of visa cancellation; how the grounds for cancellation are interpreted from a policy and legal viewpoint” in cl 1.1.2.  It contains a series of instructions or directions as to procedures to be followed to accord with the Act and the Regulations, including tables of procedural steps, suggested forms of notification and the like.  Clause 17.2.1 commences in the following terms:

   Assuming the ground for cancellation is made out, primary considerations when considering whether or not to exercise the discretion to cancel a temporary visa under s 116 are …

   There follows the matters referred to in [3] above.

10. Having regard to those matters, and the terms of MSI 368 generally, I accept the submission that it does not prescribe matters in cl 17.2.1 which the Tribunal was obliged to take into account when considering how to exercise the discretion as to whether to cancel the visa, once the breach of Condition 8101 had been made out.  Consequently, it is appropriate to follow the approach of Gray J in El Ess 142 FCR 43 in concluding that it does not prescribe relevant matters which the Tribunal was obliged to take into account in exercising its discretion, so that any failure on the part of the Tribunal to have done so would demonstrate jurisdictional error on its part. I do so because that decision seems to me to be directly on point. It is a decision of a judge of the Court which has apparently stood unchallenged for some time. I have received no submission that the decision is plainly wrong. See generally Cooper v Commissioner of Taxation (2004) 139 FCR 205 at 211-212, [46].

11. I am aware that the relevant terms of MSI 316 appear to be in the same or substantially the same terms as MSI 368, so at first glance the decision in Sandoval may also seem to apply directly to the present situation.  However, without endeavouring to confirm the correctness of the observation, the significantly different set in that case was that it was based upon the fact that MSI 316 was an instrument with which the decision-maker had to comply because it had the status of an instrument made under s 499: see Sandoval 194 ALR at [62]. I have concluded that MSI 368 does not have that statutory status. Nor, in the light of that conclusion, is the Tribunal’s approach to the exercise of its discretion shown to have been the consequence of any misunderstanding of the applicable law.

12. It was not argued by the appellant that, independently of MSI 368, there should be implied into the discretion contained in s 116 of the Act an obligation on the part of the decision-maker to take into account the extent of non-compliance with Condition 8101 or the circumstances in which the ground for cancellation arose.  I have not therefore had the benefit of argument on that contention, and the first respondent has not had an opportunity to address it.  It would not be appropriate, in those circumstances, to determine that by implication from s 116 in its context and terms those two matters were matters to which, as a matter of law, the Tribunal was obliged to take into account, at least in the way the appellant now contends.

13. The two particular matters which, in my earlier reasons, I identified as possibly matters where the Tribunal had failed to have regard to matters identified in MSI 368 were the extent of non-compliance with Condition 8101, and the circumstances in which the ground for cancellation arose.  I discussed those matters in [39] of the earlier reasons.

14. There is a clear line to be drawn between a failure on the part of an administrative decision-maker to have regard to matters which it is required to have regard to, and a failure on its part to consider those matters in a way with which the Court may as a matter of fact disagree.  It is only in the former case that jurisdictional error will be made out: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Although that line is clear, it is sometimes difficult to determine on which side of the line the processes of reasoning of the administrative decision-maker fall.

15. In this matter, having regard to the Tribunal’s reasons on those two aspects which are set out at length in [19] – [21] of my earlier reasons, I have come to the view that in any event its reasons would not disclose jurisdictional error on its part even if MSI 368 did impose the consideration of those matters as mandatory relevant matters to be considered by the Tribunal, or even if by implication from the Act itself including s 116, the Tribunal was obliged to consider them.  It has said it has done so.  It is possible to criticise the reasoning of the Tribunal, as I addressed in [39] of my earlier reasons.  One may have expected the Tribunal to have made findings as to whether the applicant was in fact paid for the work he was undertaking, or whether he was doing it out of interest and for training.  One might have expected the Tribunal to have made a finding as to the extent to which he was working and being paid.  Those two matters emerge from the example which is given in cl 17.2.1 of MSI 368 in relation to the extent of non-compliance with conditions subject to which the visa was granted.  The Tribunal may also have been expected to indicate whether it accepted the appellant’s evidence as to the claimed reduction of funding support from his parents as relevant to those matters.  I do not think the Tribunal has made such findings.  But it is not for the Court to substitute its judgment as a matter of common sense as to the factual matters which may be relevant to the topics upon which the exercise of the discretion should be based.  The matters upon which the Tribunal made findings on those topics were clearly regarded by it as relevant.  And unless specific factual issues are dictated by the legislation or by instruments under the legislation, either expressly or by necessary implication, the failure to address such specific factual issues will not of itself demonstrate jurisdictional error.  I have not accepted that they were.

16. Accordingly, in my view, the Tribunal’s reasons do not in any event demonstrate jurisdictional error on its part, even if MSI 368 was taken to have prescribed matters which the Tribunal was obliged to have regard to.  Its reasons demonstrate, in my view, that the Tribunal did have regard to those matters, but not in a way which I might have done so.  That is not sufficient to authorise or warrant the Court’s intervention in this matter.

17. The appeal is therefore dismissed.  I see no reason why costs should not follow the event.  The appellant should pay the costs of the first respondent on the appeal and on the application for leave to appeal out of time.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        26 July 2007

Counsel for the Appellant:	The appellant was unrepresented.
Counsel for the Respondents:	Mr G Kennett
Solicitors for the Respondents:	Blake Dawson Waldron
Date of close of submissions:	6 July 2007
Date of Judgment:	27 July 2007